(after stating the facts as above).
[1] It is concluded that the trial court erred in sustaining the demurrer to the appellant’s defense of alleged failure to comply with the stipulation providing for notice of claim for damages. The statute does not make invalid and void a stipulation in a contract requiring notice, as of the kind here, of claim for damages, if siuch stipulation is reasonable. Article 5714, Vernon’s Sayles’ Stat. The ease of *241Taber v. Western Union Telegraph Co., 104 Tex. 272, 137 S. W, 106, 34 L. R. A. (N. S.) 185, had a stipulation requiring the claim to be “presented in writing within ninety days after the message is filed with the company for transmission.” The Supreme Court determined that the particular stipulation was invalid and contrary to the terms of the statute because it provided for notice to be given “within 90 days after the message was filed with the company for transmission.” “The purpose of the act,” as ruled by the court, “was to fix a minimum period of 90 days from the time the cause of action arose.” And in Smith v. Railway Co., 138 S. W. 1075, the stipulation there was held invalid because notice was required to be given before the expiration of full 90 days. In Railway Co. v. Marcofich, 185 S. W. 51, though, the stipulation provided for notice to be given within 91 days after the cau§e of action arose, and was not contrary to the terms of the statute. The stipulation was there held valid and binding, if reasonable in point of fact. See Turner v. Henderson, 183 S. W. 51. And even if the company’s liability is to be fixed as interstate, assuming such only for the moment, the stipulation may be sustained, if reasonable. Railway Co. v. Bracht, 172 S. W. 1116, citing authorities.
[2] The appellant also predicated error upon the refusal of the court to submit the charge asking a verdict for the defendant upon the finding that the stipulation was, under the circumstances of the case, a reasonable one. There is evidence that the provision is reasonable, and it is undisputed that no claim in writing was ever presented by appellee, and the suit was not filed until March 22, 1917. There is no pleading of nor any evidence even tending to show a waiver of the stipulation. There is error showing injury and requiring a reversal of the judgment.
It is not deemed necessary to pass upon the other assignments of error.
Judgment reversed, and the cause remanded.
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